Salmon and Howard (No 2)

[2013] FamCA 1150

FAMILY COURT OF AUSTRALIA

SALMON & HOWARD (NO. 2) [2013] FamCA 1150

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – relevance of the evidence sought to be produced – “fishing” – costs.      

Family Law Act 1975 (Cth)

APPLICANT: Mr Salmon

RESPONDENT: Ms Howard

FILE NUMBER: MLC 1990 of 2011

DATE DELIVERED: 9 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 9 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Woolfe

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Mr Yianoulatos

SOLICITOR FOR THE RESPONDENT: James Harris Lawyers

Orders

IT IS ORDERED THAT

1. The wife pay the husband’s costs relating to the issue of a subpoena to Professor M fixed in the sum of $704.00, those costs to be paid from the wife’s property settlement.

2. The husband’s time to file a case summary pursuant to paragraph 16 of the orders of 6 December 2012 be extended to 12:00 pm on 10 May 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salmon & Howard (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1990 of 2011

Mr Salmon

Applicant

And

Mr Howard

Respondent

REASONS

1. This matter was listed for mention before me on 3 May 2013.  On that date, an application was made for the issue of a subpoena addressed to the Medical Director of the K Hospital.  I declined to issue that subpoena on the basis that the apparent relevance of the evidence sought to be adduced was not established.

2. On 6 May 2013 the solicitor for the wife forwarded an email to my Associate attaching a report compiled by a general and trauma surgeon, Prof M, seeking leave to issue a subpoena addressed to Prof M to give evidence in relation to matters arising from his report.  It was on that basis that the matter was listed for mention before me today.

3. It was submitted on behalf of the wife that the evidence sought to be adduced from Prof M was whether or not he could exclude sexual activity as a cause of the anal fissure that is referred to in his report dated 6 September 2007.  The very nature of what was submitted by the wife’s solicitor to be the evidence sought to be adduced appears to be “fishing”. It would be a simple question to ask Associate Prof M whether or not he can exclude sexual activity as the cause of that anal fissure, and arguably if he does exclude that as a possibility, there would be absolutely no basis whatsoever for his evidence nor any relevance of that evidence to the case that I must determine.  In those circumstances, it is not possible for the wife to establish the apparent relevance of the evidence and, on that basis, I have declined to issue that subpoena. 

4. I should also say that I am mindful of the fact that a subpoena requiring Prof M to come to Court to give evidence would compel him to do that in circumstances where it is not clear whether he can give any evidence relevant to the case.  The issue of a subpoena in such a case is a power that must be exercised with some caution.  Prof M no doubt has commitments with patients which would be likely to be significantly interrupted and, in circumstances where it is not even clear that his evidence would assist, I do not think it is appropriate to require him to do so.  I have made it clear, however, that I have not ruled out the possibility of him giving evidence at trial if it eventuates that that evidence may be relevant to the wife’s case. 

5. The general rule is that each party to proceedings in this Court shall bear his or her own costs.  That general rule is subject to s 117(2) of the Family Law Act 1975 (Cth) (“the Act”), which provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may make such an order as to costs as it considers just.  I do not agree with the submission, or accept the submission that those circumstances must be exceptional.

6. Section 117(2A) of the Act sets out the matters the Court must have regard to in determining what, if any, order should be made for costs insofar as they are relevant.  The most matter for the purposes of this application is in my view the conduct of the parties to the proceedings in relation to this litigation and, in particular, this application.  An application has been made to issue a subpoena which has been unsuccessful, but more importantly, it is premature.  The steps that should have been taken were, firstly, to find out what Prof M’s evidence might be, from that to determine whether that evidence was relevant, and then finally, to find out whether in fact he might willingly attend, as one would expect him to as a witness on affidavit and whether a subpoena was, in fact, necessary.

7. It was submitted that the file handed to the wife’s solicitor was incomplete, and that the preparation of this matter has been extremely difficult.  Whilst that may be true, I also note that the report upon which this subpoena is based has been available to the wife and her solicitor for some time.  In all of the circumstances, these are matters that should have been attended to well before the week prior to this hearing.

8. I also do not agree that because enquiries were made by Mr Woolfe to Prof M’s office to ascertain whether he is aware of these proceedings, and which ultimately revealed that he was not even in Australia, that costs were not thrown away.  Those inquiries are directly related to the application for this subpoena, which I have refused. It seems to me that, in all of the circumstances, the costs the husband seeks are reasonable and I should fix those costs and order that they be paid.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 9 May 2013.

Associate:     

Date:  22 July 2013